Damages in private nuisance are limited by reasonable foreseeability even where the nuisance is intentional; the availability of exemplary damages addresses the qualitative difference between intentional and negligent nuisance. The establishment of a colony of a threatened species on land affected by stormwater nuisance is not a reasonably foreseeable consequence of the nuisance, even where the council had statutory obligations regarding threatened species and had commissioned environmental reports. The threatened status of a species itself militates against the foreseeability of its colonisation of new habitat. Section 45 of the Civil Liability Act 2002 (non-feasance protection for roads authorities) does not protect a council that has actively directed stormwater onto private land, as the section is directed to non-feasance rather than misfeasance. Section 43A of the Civil Liability Act 2002 does not apply where the civil liability is not 'based on' the exercise or failure to exercise a statutory power.
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